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Gresham v. Ocwen Loan Servicing, LLC

United States District Court, D. Delaware

February 5, 2018

OCWEN LOAN SERVICING, LLC, et al., Defendants.



         The plaintiff, Elisha L. Gresham ("the plaintiff), who proceeds pro se, commenced this action on February 28, 2017. (D.I. 2.) The defendants Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-EQ1 Asset-Backed Certificates, Series 2006-EQ1 and Ocwen Loan Servicing, LLC ("the defendants")[1] move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).[2] (D.I. 16.) The plaintiff opposes.


         The plaintiff alleges illegal foreclosure proceedings and violations of her constitutional rights and numerous federal statutes occurred from 2006 through 2017 (D.I. 2 at 8.) She alleges that the defendants: (1) took advantage of her ignorance by manipulating and coercing her to sign a second set of mortgage documents under duress; (2) rejected all reasonable negotiation efforts; (3) violated and disregarded all federal laws that warrant orders for them to cease and desist all collection and foreclosure of real property located in New Castle, Delaware; (4) failed to properly produce the "original order" in question and refused to debunk laws quoted by the plaintiff in her February 11, 2017 letter; (5) did not substantiate their legal claim/argument for the plaintiff to continue pay them or they would illegally pursue foreclosure proceedings; (6) did not allow the plaintiff adequate time to search for, and obtain, counsel in 2006; (7) disregarded her income changes due to disability; (8) tried to manipulate her in December 2016 to sign another agreement to lower her payments and only allowed her a limited time to review, sign and agree with the defendants; (9) ignored property records that show the plaintiff owns and fully purchased the property years prior to 2006; and (10) continue their pursuit to illegally foreclosure on her property to which they have no legal rights or claims. (Id. at 8-9.) The plaintiff seeks compensatory damages as well as a total and complete discharge of her entire debt from all parties involved.

         The defendants move to dismiss on the grounds that the complaint: (1) fails to satisfy the pleading requirements of Rule 8(a)(2); (2) fails to state a cause of action; (3) fails to establish subject matter jurisdiction; and (4) fails to state a claim for fraud with the particularity required by Rule 9(b).


         A. Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack contests the sufficiency of the pleadings, whereas a factual attack contests the sufficiency of jurisdictional facts. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). When considering a facial attack, the court accepts the plaintiffs well-pleaded factual allegations as true and draws all reasonable inferences from those allegations in the plaintiffs favor. See In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625, 633 (3d Cir. 2017). When reviewing a factual attack, the court may weigh and consider evidence outside the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3dl69, 176 (3d Cir. 2000).

         B. Fed.R.Civ.P. 12(b)(6)

         Because Gresham proceeds pro se, her pleading is liberally construed and her complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

         A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!, Corp. v. Twombfy, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __U.S. __, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.

         Under the pleading regime established by Twombfy and Iqbal, a court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Iqbal, 556 U.S. at 678 and Twombfy, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Finally, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

         IV. ...

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